Don’t blame the defense attorneys. They’re supposed to work every angle to keep their client out of jail.
And as proceedings continued Wednesday in Texas in Air Force Academy graduate Joseph Harding’s court-martial on charges of indecent assault and rape, it was obvious that his attorneys will do just about anything to keep this case from going to trial.
Now, we all understand that’s what defense attorneys do. It’s called due process; no apologies necessary.
Actually, it’s the prosecutors in the Harding case that have me worried. I keep getting the feeling that their hearts aren’t in it. Or maybe these military prosecutors are so inexperienced with bringing rape cases to trial, they don’t have a clue.
For the last three months, the defense has tied up the case in court over a subpoena of the records of counseling sessions with the alleged rape victim and her civilian therapist, Jennifer Bier.
Bier has refused to relinquish the records, citing patient-therapist privilege. Harding’s lawyers keep threatening to have her arrested, saying the military doesn’t care about wussy civilian laws protecting privacy. And a bunch of civilian judges have ruled that, much as civilians like the civilian laws, the military is above them.
So, while Bier remains free for the moment, there’s nothing to stop military police from throwing her in jail for upholding her professional ethics and abiding by the law.
But face it: This is not making the defense lawyers look good.
Still, unlike civilian prosecutors who would be holding news conferences and fueling public outrage over the nerve of an organization that requires sexual-assault victims to undergo counseling and then tries to seize their private records in the hope of finding something in there to undercut their credibility, the military prosecutors have been polite to a fault.
Then there was the latest twist in the defense game plan in which attorneys asserted Wednesday that improper influence from the brass – who were embarrassed by all the publicity about the mishandling of rape complaints at the academy and needed a convenient scapegoat – was the only reason charges were filed against Harding at all.
And Major Gen. Edward “Buster” Ellis didn’t exactly inspire confidence in his commitment to the case when he said he was so uncertain about calling for a court-martial of Harding that he had to “pray about it over the weekend” before deciding to proceed.
This despite the opinion presented by Col. Bruce Brown, a legal adviser and a military judge, that the preliminary Article 32 hearings showed there was sufficient evidence to justify a court-martial of Harding.
So you have to wonder what Ellis was praying for. Loopholes?
The judge denied the undue-influence motion. But the prosecuting attorneys couldn’t help but feel ambivalent about their victory.
After all the effort the academy brass has invested in trying to silence the complaints of female cadets, can anybody blame them for thinking that getting the first conviction in the 60 rape complaints made since 1993 might be perceived as breaking rank?
Wendy Murphy, an attorney representing Bier, said she is convinced the prosecutors would prefer that the judge dismissed the case.
“This came up in a conference call last week,” she said. “I said, ‘I hope and expect that your position remains what it was, that you will persist”‘ in prosecuting Harding when the defense tries to get the case dismissed because of Bier’s refusal to relinquish the counseling records.
“Their answer made it quite clear the path they were going to take,” Murphy said.
“They said, ‘Ahh, de, de, de, de, de.’ And that’s a direct quote.”
The defense reportedly played the Bier card Wednesday in secret session with the judge. No word yet on how the prosecution responded.
Wink? Nod? Or just, “De, de, de, de.”
Diane Carman’s column appears Sunday, Tuesday and Thursday. She can be reached at 303-820-1489 or dcarman@denverpost.com.
